Thomas Ross KC

The resignation of Lord Bracadale from his position as chair of the Sheku Bayoh inquiry after 122 days of evidence – followed by the mass resignation of all the counsel to the inquiry three days later – no doubt led the public to ask: how did we get to this position and where do we go from here? 

Sheku Bayoh was 31 years of age, with a partner and two young sons, when he died in Hayfield Road, Kirkcaldy, on the morning of May 3, 2015. The police officers involved in his restraint claim that they had attended in response to numerous reports from the public of a black man in possession of a large knife and that, upon their arrival at the locus of those reports, Sheku assaulted a female police officer by punching her on the back of the head, knocking her to the ground. 

PAVA spray was deployed, at least one police baton was drawn, but ultimately Sheku was restrained by numerous officers in a face-down position, lost consciousness and expired. Toxicological evidence confirmed the consumption of cannabis, MDMA and Alpha-pvp (a synthetic stimulant similar to methamphetamine).

Given that Sheku Bayoh was in police custody at the time of his death, the holding of a statutory fatal accident inquiry was mandatory in terms of the Inquiries into Fatal Accidents & Sudden Deaths etc (Scotland) Act 2016. The purpose of such a statutory inquiry would have been to (a) establish the circumstances of the death, and (b) consider what steps (if any) might be taken to prevent other deaths in similar circumstances – but in time the Scottish government agreed to go much further than that which was strictly required by law.

In October 2018, the Crown Office advised the Bayoh family that the police officers would not be prosecuted. The family exercised its right to request a review, but the original decision not to prosecute was confirmed in 2019. 

On November 12, 2019, in the Scottish Parliament the justice secretary – Humza Yousaf – announced that a wider-ranging inquiry would be held and its scope was confirmed in May 2020. In addition to the statutory requirements referred to above, the inquiry, it was said, would assess and establish aspects of the case that could not be fully captured through the FAI process, namely (a) the post-incident management process and subsequent investigation, and (b) the extent (if any) to which events leading up to and following Mr Bayoh’s death, in particular the actions of the officers involved, were affected by his actual or perceived race. 

Given the extremely wide-ranging scope of the inquiry, it was obvious that it would neither be quick or cheap, and so it has proved. By the time of Lord Bracadale’s resignation on October 21, 2025, the inquiry had taken 122 days of evidence at a cost of £26,249,080.

It would have been very hard to think of a more suitable candidate to chair the inquiry than Lord Bracadale. Upon his retirement from the bench in 2017, he was appointed by the Scottish government to review hate crime legislation. In a stellar legal career, he had successfully prosecuted Abdelbaset al-Megrahi for the Lockerbie bombing, and as a judge, presided over some of Scotland’s most high-profile criminal trials including those of Tommy Sheridan, Nat Fraser and David Gilroy. So what went wrong? 

Given that the remit of the inquiry included the causes of Sheku’s death, and the extent to which the arresting officers were affected by his race, the role of the chair was clearly bound to include assessments as to the credibility of witnesses. When such judgments have to be made, law requires that the fact-finder must remain strictly independent of the parties – and that was where the problems occurred.

It transpired that Lord Bracadale had met with the Bayoh family on five separate occasions between November 2021 and December 2024, in the absence of other core participants. Although it seems to have been accepted that it would have been perfectly proper for the chair to meet the family for the limited purpose of introducing himself, it was said that the meetings had gone further. In particular, it was submitted that contested matters of fact had been discussed that would require to be decided as part of the inquiry, for example, that the family had been “asked for their thoughts on the question of race”.

Notice of the objection having been given, Lord Bracadale convened a hearing on June 12, 2025, to hear submissions on the point. Although there was no allegation of “actual” bias on the part of Lord Bracadale – nobody who knew him could possibly have made such a suggestion – it was submitted that “any decision-maker tasked with arriving at a decision fairly, and in compliance with the tenets of natural justice, should not meet privately or secretly with a party with an interest therein” (Docherty v Mcglennan 1997 Scots Law Times 444), and that apparent bias having been demonstrated, recusal was mandatory (Millar v Dickson 2002 SC (PC) 30). Seven police officers supported the application for excusal. In addition, the solicitor general submitted that the meetings “satisfied the test for apparent bias”.

In August 2025, Lord Bracadale issued his judgment, declining to stand down from this position as chair to the inquiry, having concluded that “any fair-minded and informed observer would have concluded that there was no real possibility that he was biased”.

The Scottish Police Federation had no intention of leaving the matter there and raised a petition for judicial review, but with a first hearing on the petition set for November 17 and 18, 2025, Lord Bracadale submitted his letter of resignation to Deputy First Minister Kate Forbes on October 21, 2025. His lordship stated “it is now clear to me that many of the core participants have lost confidence in my conduct of the inquiry to such an extent that it cannot be retrieved” and “I am concerned the majority of core participants would have no confidence in the findings of any report prepared by me”.

Lord Bracadale’s resignation was followed by the resignation of counsel to the inquiry three days later. So, no chair, no counsel. Where does the inquiry go from here?

Well, Lord Bracadale’s letter of resignation clearly contemplated that “the best interests of the inquiry would be served by the appointment of a new chair to whom all the existing evidence, which is available on tape and transcript, would be available”. Time-consuming perhaps – but not impossible for a retired judge to get up to speed with the evidence within a few months. So far, so good.

But what of counsel to the inquiry? All would have been appointed by Lord Bracadale – so their resignations were probably thought to have been a matter of honour. If that was the only motive then there is no bar to the new chair re-appointing them all. If the new chair for some unimaginable reason chooses not to – or attempts to and they decline – the issue is much more problematic.

Are there lessons to be learned from the Bayoh inquiry? Given that a statutory fatal accident inquiry would have taken evidence on the circumstances of Sheku’s death, it is inevitable some may ask whether the wider inquiry authorised by Mr Yousaf was a wise use of public funds, particularly when so many public services are being squeezed to oblivion. Others will argue that all deaths in police custody should be subjected to the closest public scrutiny, regardless of the potential cost.

Permit me a thought for Lord Bracadale, a talented lawyer, a courteous judge – and more importantly – a thoroughly decent person. Nobody can doubt that he met with the family with the very best of intentions, as others conducting inquiries in Nottingham, Omagh and Edinburgh had done. His view that there was “a public interest in obtaining and retaining the confidence of the families in the inquiry” makes perfect sense to a neutral observer – but it is equally understandable that a core participant, whose life might be affected forever by the chair’s findings, might see the matter differently.

I have every confidence that it will prove possible to get the inquiry back on track. Time will tell.

This article first appeared in The Herald